State (Delhi Administration) vs Dilbagh Rai And Others
1984 Latest Caselaw 397 Del

JUDGMENT

1. This criminal appeal is directed against the order of Chief Metropolitan Magistrate, Delhi, dt. 31-3-1975 by which he has acquitted the respondents of the charges framed against them under various heads such as under sections 120-B, 420, 468, 471 and 466. Originally five persons namely Dilbagh Rai, respondent 1, U. C. Madan respondent 2, Bhagwan Dass respondent 3, who is now supposed to have died during the pendency of the appeal and who was supposed to be the recipient of goods were prosecuted. Out of the other two persons who were prosecuted, Dewan Singh, a clerk, was discharged while K. E. Naidu died during the course of trial. We are now left only with respondents 1 and 2 i.e. Dilbagh Rai and U. C. Madan.

2. We may give a brief resume of the facts that led to the prosecution of the accused. The allegation against the accused persons as put forward before the court is that the accused K. E. Naidu, Dilbagh Rai, U. C. Madan, Dewan Singh and Bhagwan Dass together with some other unknown persons entered into a criminal conspiracy at Delhi in and around 1960 with a common object to cheat the officers of the office of Chief Controller of Imports and Exports New Delhi (hereinafter called C.C.I.E.) with a view to dishonestly get an import license for the import of M.E.M. switch fuses on the basis of forged import recommendation certificate and forged copy of Acceptance Tender by making false representation. It is alleged that in pursuance of the said criminal conspiracy Dewan Singh accused who was at the relevant time serving as a clerk in the office of the Chief Controller of Imports and Exports deliberately avoided to make an entry of receipt of genuine duplicate import recommendation certificate bearing special No. 290 issued by Shri A. D. Rao, Director of Supplies and Disposals, Madras, in the name of M/s. Hardcastle Waud & Co., Pvt. Ltd. Bombay for grant of import license worth Rs. 1045/- to the said firm of Bombay for the import of finger Patent Reflex gauge glass which was received on 18-1-1960 and this he did even though it was his duty to make an entry about the receipt of the said import recommendation certificate in the I.R.C. Register maintained in the L-VI Branch. It is also stated that pursuant to the aforesaid criminal conspiracy, the accused jointly floated a fictitious concern with the name and style of M/s. Southern Electric Trade Agency Madras and that K. E. Naidu forged the signatures of T. Ramaswamy supposed to be the proprietor of this bogus firm and obtained no objection certificate from the income-tax authorities. Thereafter, he obtained I.V.C. exemption No. IVC/MAD/Exemption/S-450-Madras on the basis of the said no objection certificate again by forging the signatures of T. Ramaswamy as proprietor of the bogus firm, M/s. Southern Electric Trade Agency Madras. Thereafter, the aforesaid IVC exemption number is quoted in the import application submitted by this fictitious firm. They are supposed to have submitted an import application dated 4-3-60 as Government contractor to the C.C.I.E. New Delhi under the covering letter of the same date signed by accused Dilbagh Rai as T. Ramaswamy, the bogus proprietor of the bogus firm for grant of import license for M.E.M. switch fuses worth Rs. 39185/-.

3. In support of their application they furnished a forged import certificate No. Mad/T/4372-J dt. 1-2-60 bearing the same special number 290 purporting to have been issued under the signature of Shri A. D. Rao, Director of Supplies and Disposals Madras and also forged Acceptance of Tender No. Mad/T/4372-J/3925 dt. 23-1-1960 purporting to have been issued under the signatures of N. Venkataraman, Asstt. Director of Supplies Madras, both the favor of M/s. Southern Electric Trade Agency Madras, a fictitious firm floated by the accused recommending the grant of import license for the import of M.E.M. switch fuses worth Rs. 39185/-. Under the aforesaid import application they also requested that the letter of authority may be issued in favor of M/s. B. Hira & Co., 72-73 Old China Bazar Street, Calcutta of which Bhagwan Dass accused is the proprietor.

4. Prosecution case further is that in pursuance of the aforesaid criminal conspiracy U. C. Madan accused ensured that a forged import recommendation certificate with the same special number 290 purporting to have been issued by Shri A. D. Rao, Director of Supplies and Disposals Madras recommending grant of import license for the import of M.E.M. switch fuses worth Rs. 39185/- in the name of M/s. Southern Electric Trade Agency Madras was received in the office of C.C.I.E. New Delhi and he made an entry regarding the receipt of the said forged IRC in the IRC Register of the branch. In pursuance of the said criminal conspiracy K. E. Naidu accused deposited a license fee of Rs. 35/- as S. K. Swamy in the treasury. This treasury challan along with the original VIC allotment letter under a forwarding letter signed by Dilbagh Rai accused as T. Ramaswamy, proprietor of the said firm, was sent by all the accused to the office of the C.C.I.E. as desired by the said office. That in pursuance of this conspiracy U. C. Madan accused, clerk in the office of C.C.I.E. put up a false note that he has checked the IRC indicating that he had compared the signatures of Shri A. D. Rao on the IRC submitted by the firm M/s. Southern Electric Agency Madras along with their import application with the specimen signatures of said officer kept in LVI section for that purpose and that he had also compared the IRC and Acceptance Tender submitted by the said firm of the accused with advance copy of the IRC bearing special No. 290 and advance copy of the Acceptance Tender received from the Director of Supplies and Disposals Madras.

5. The prosecution case thus is that on the basis of the said import recommendation certificate and false recommendation of Shri U. C. Madan accused an import license No. G. 992844/60 dt. 3-5-60 for the import of M.E.M. switch fuses worth Rs. 39185/- came to be issued in the name of M/s Southern Electric Trade Agency Madras, a fictitious firm floated by the accused and that it was dispatched to the said firm of the accused at their Madras address through registered post. The registered letter containing import license in question was received by K. E. Naidu accused who signed the postal receipt relating to the said registered letter as K. E. Naidu. Since no letter of authority was issued by the office of the C.C.I.E. New Delhi in favor of M/s. B. Hira & Co. Calcutta the firm of Bhagwan Dass accused sent a letter dt. 13-6-1960 signed by Dilbagh Rai accused as T. Ramaswamy, proprietor; to the C.C.I.E. New Delhi. Shri U. C. Madan accused recommended for issue of letter of authority and consequently a letter of authority in favor of the said firm of Bhagwan Dass accused was issued and sent by registered post on the Madras address of the firm of the accused and the same was received by K. E. Naidu accused who signed the postal receipt.

6. It is alleged by the prosecution that in pursuance of the aforesaid conspiracy Bhagwan Dass accused in whose favor letter of authority in respect of the said aforesaid import license was issued by the office of C.C.I.E. New Delhi got opened letters of credit against the said import license with the United Commercial Bank Ltd. Calcutta after paying the margin money. Bhagwan Dass accused further paid the amount of foreign suppliers bills and got the shipping documents retired from the bank. The goods were consequently imported at Calcutta and the same were got cleared by the accused through M/s. N. C. Singha & Sons Customs Clearing Agents Calcutta.

7. We have heard Mr. Sachdeva, learned counsel for the appellant as also the learned counsel for the respondents. As already stated in this case we are now mainly concerned with two of the respondents namely Dilbagh Rai and U. C. Madan; two of the accused persons K. E. Naidu and Bhagwan Dass have died during the course of trial and during the pendency of this appeal respectively and one of them namely Dewan Singh has been discharged earlier.

8. On consideration of the arguments we may at once point out that the case against the respondents before us now is in fact based on the criminal conspiracy that is supposed to have been hatched somewhere in and around 1960 with a view to cheat the officers of C.C.I.E. New Delhi and to dishonestly obtain import license for M.E.M. switch fuses on the basis of forged recommendation certificate and forged copy of acceptance tender by making false representation. In furtherance of this conspiracy the respondent Dilbagh Rai is supposed to have forged his signatures on the application for import license Ex. P-2 and also on the covering letter Exhibit P-1 on behalf of a fictitious name T. Ramaswamy as proprietor of M/s Southern Electric Trade Agency Madras which was fictitiously floated by the accused persons in pursuance of the said conspiracy. The import license in a case such as this is only issued on the basis of import recommendation certificate. In this case Ex. P-4 which has been submitted with the application is supposed to have been forged under the signatures of one A. D. Rao Director of Supplies and Disposals Madras. Another document known as acceptance of tender and marked Ex. P-5 is also submitted with the application and on this also the signatures of N. Venkataraman, Asstt. Director, Supplies and Disposals New Delhi has been forged. In this manner the case against Dilbagh Rai accused respondent rests on these documents as also on the testimony of V. V. Chander Shekharam PW 44. The testimony of this witness is to the effect that Ex. P-4 and Ex. P-5 i.e. import recommendation certificate and acceptance of tender are not genuine documents. This witness was Director of Supplies and Disposals at Madras at the relevant time. Another witness Shri A. D. Rao PW 3 has denied his signatures on Ex. P-4, office copy of which is Ex. P-8. PW 25 Shri N. Venkataraman has denied his signatures on Ex. P-5, acceptance of tender. On a perusal of the aforesaid evidence it would appear that nothing will turn on this for the reason that all these witnesses who are supposed to have signed the documents have only said that these documents do not bear their signatures. These witnesses can in no way involve Dilbagh Rai accused as long as the prosecution does not show by cogent evidence that the signatures appearing on these documents were in fact appended by Dilbagh Rai accused.

9. Mr. Sachdeva, counsel for the appellant, under these circumstances frankly admitted that the only evidence on the basis of which the accused Dilbagh Rai can be connected with the commission of this offence is the testimony of PW 45 S. K. Sharma, Government examiner of questioned documents regarding which the learned trial Magistrate has observed that since it is an opinion evidence it cannot take the place of substantive proof unless some corroborative evidence is forthcoming. The learned Magistrate also brushed aside the testimony of PW 45 S. K. Sharma on the ground that accused had also examined an expert who had given an opinion contrary to that of the government examiner of questioned documents and in this way the learned Magistrate did not rely upon evidence and found it unsafe to base conviction on such evidence. Mr. Sachdeva, learned counsel for the appellant has vehemently urged that where it is a question of two experts given contrary opinion for either of the sides, the Court cannot shirk its responsibility and that in a situation such as this it is the duty of the Court to go through the documents and record a finding either of the way. It may be so, but here in this case Mr. Sachdeva learned counsel for the State-appellant has another hurdle to cross and unless he satisfies the Court on that count it would be sheer waste of time to proceed further in the matter.

10. Here in this case, it is alleged that the specimen signatures of Dilbagh Rai accused on Ex. PW 17/10 and PW 17/21 (S. 44 and S. 45) were taken down by the investigating officer Ram Saran S.I. from Dilbagh Rai for comparison during the course of investigation and at the time when the specimen signatures were allegedly taken from Dilbagh Rai the same are supposed to have been witnessed by two persons Ramji Dass and Bakhshi Ram. In a case such as this where specimen signatures or writings of a suspect are procured during investigation, an additional burden is cast upon the prosecution to show by cogent and unambiguous evidence that the specimen signatures are that of Dilbagh Rai accused excluding the possibility of these writings having been made by some other person.

11. In the case in hand as already stated, Ram Saran, S.I. is supposed to have got these specimen writings from Dilbagh Rai in the presence of Ramji Dass and Bakshi Ram. Mr. Sachdeva, learned counsel, frankly admitted that neither Ramji Dass nor Bakhshi Ram, two attesting witnesses have been cited as prosecution witnesses. From our point of view it was very much necessary to cite these persons as witnesses at least on a limited point that it was Dilbagh Rai accused who actually gave these specimen signatures to S.I. Ram Saran. None of these witnesses has been cited as a witness and the entire knowledge about the identity of the person who gave the specimen writings is kept by the investigating officer to himself as a closely guarded secret. Mr. Sachdeva, learned counsel, suggested that there is no reason to disbelieve the investigating officer in this regard. We do not think this suggestion by Mr. Sachdeva needs any comment on our part. What we feel is that in order to keep the investigation and the identity of the person who gave, these specimen signatures above any suspicion, the investigating officer should have at least cited one of these witnesses and the prosecution should have examined them so as to clearly establish the identity of the person who gave these specimen signatures. In giving expression to our views we have taken notice of the fact that the address given of Dilbagh Rai in these specimen writings is 9174, Gali Zaver Wali Nawab Ganj, Delhi. The address of Ramji Dass, one of the attesting witnesses is given as Malviya Nagar, New Delhi, while the address of Bakhshi Ram, another attesting witness is not at all given. It is really something very much intriguing inasmuch as the Court under the circumstances will be justified in asking as to how were those two persons supposed to know Dilbagh Rai and this would be particularly so when seven their very presence is suppressed from the Court. Under the circumstances of this case, it is therefore absolutely difficult to depend upon the solitary testimony of the investigating officer, Ram Saran, S.I. who has no doubt deposed that he took the specimen signatures Exs. P-10 and P-12 of Dilbagh Rai accused. It was for Ram Saran S.I. to explain as to why he did not cite the two attesting independent witnesses as prosecution witnesses or at least to show by independent evidence that these specimen signatures were in fact of Dilbagh Rai accused. When an independent witness regarding the identity of the person who is supposed to have made these writings is available but is suppressed from the Court, one cannot but approach the intention of the investigation with certain amount of suspicion.

12. Mr. Ram Saran Investigating Officer goes on record to say that there was an allegation against one Gobind Ram serving in the office of C.C.I.E. New Delhi to the effect that in collusion with the members of public and employees of the office he used to have import license issued on the basis of forged documents. He also has gone on record to say that since there was no evidence against him he was not challaned along with other accused persons. This would clearly go to show that the investigating officer has given absolutely casual and mechanical treatment of this case. After all at that point of time there was absolutely no evidence available against Dilbagh Rai accused also. One wonders how the investigating officer laid his hands on Dilbagh Rai who is one amongst the million of citizens. Least that he could have done was to take the specimen signatures of Gobind Ram also for comparison but this he has dispensed with. He is not even prepared to tell the Court as to who had made allegations against Gobind Ram in respect of the fact that he used to have import license issued on the basis of forged documents in collusion with the members of the police and the employees in the office of C.C.I.E. New Delhi. The Court is not even told as to who were those persons from the police and who were the employees in the office of C.C.I.E. New Delhi who were supposed to be a party to this racket. In any case, the least that can be said is that the allegations against Dilbagh Rai at that stage were not more serious than the one against Gobind Ram and the rules of justice and fair play would demand of the investigating officer Ram Saran that he should have taken the specimen signatures of Gobind Ram also and while taking the signatures of both Dilbagh Rai and Gobind Ram he should have sufficiently got their identity established and kept himself above suspicion. From our point of view this is a very substantial hurdle in the way of the appellant and we are not at all convinced by the submission of Mr. Sachdeva that the testimony of Ram Saran in this regard should be taken as a final word. We are unable to subscribe to that view particularly in the light of the circumstances in which Mr. Ram Saran has approached the investigation of this case. To us it appears that there is absolutely no evidence to show that the specimen signatures Ex. P-17/10 and Ex. P-17/21 are that of Dilbagh Rai accused and once we firmly hold that view the question of examining the evidence of the government expert in respect of the comparison of the writings does not arise. In fact in the absence of the evidence establishing that it was Dilbagh Rai and Dilbagh Rai alone who gave these specimen writings the opinion of the expert cannot be pressed into service. This is one of the reasons for us to say that under the circumstances of this case and in the light of these facts the opinion of the expert examined by the accused in defense is worth more credence. Further, on comparison of specimen writings and the disputed writings, we also notice that there are some significant and marked differences between the two.

13. In respect of U. C. Madan accused the main allegation is that as a dealing Assistant he did not detect the forged signatures in the IRC Ex. P-4 nor did he notice discrepancy in the import recommendation certificate Ex. P-4 and acceptance tender Ex. P-5 in the instant case, and that he made use of his knowledge regarding the absence of entry in the import recommendation certificate register by accused Dewan Singh (since discharged) on an earlier IRC 390 to the benefit of his co-accused and also did not send a copy of the forwarding letter to the issuing officer i.e. D.G.S. & D. regarding the issue of import license to M/s Southern Electric Trade Agency which could have surfaced forgery in respect of the import recommendation license and acceptance tender at a much earlier stage and that in this way he conspired with the other accused in the acts of omission and commission. We have gone through the observations made by the learned trial Magistrate. We find that he was given adequate reasons for disbelieving the prosecution case against Shri Madan.

14. Apart from what the learned Magistrate has said we may at once point out that the case being that of conspiracy, U. C. Madan accused can only be connected with the commission of the offence if the conspiracy is proved. It is true that there can be no direct evidence in respect of the conspiracy which are more or less always hatched in the stealth of darkness. The proof of conspiracy, however, can be inferred from the proved circumstances in the case. In the case with which we are dealing we find that there is absolutely no circumstances from which inference of conspiracy could be available. Since we have held in the case of Dilbagh Rai that the case against him is not proved, which in other words, means that there is no evidence in respect of conspiracy, forgery or cheating, the accused U. C. Madan also cannot be treated differently. In the absence of any proof of conspiracy, the accused U. C. Madan cannot be connected with the commission of crime as he could not have conspired with himself. With these observations we find no force in this appeal. It is accordingly dismissed.

15. Appeal dismissed.